Fran Humphries

Adaptive or aspirational? Governance of diffuse water pollution affecting Australia's Great Barrier Reef

ABSTRACT The natural attributes of Australia’s Great Barrier Reef, a UNESCO world heritage site listed for its natural beauty and biological diversity, are rapidly declining due to major threats from diffuse water pollution and climate change. The environmental, social, political and legal conditions that have enabled or blocked successful management of diffuse water pollution are analyzed. We find that the management approach has transitioned towards resilience-focused adaptive management of impacts from outside the marine park. Despite key enablers of adaptive governance, deep-seated political ideology is a major barrier to transformational adaptive governance to improve reef water quality.

The Rising Tide of Access and Benefit Sharing in Aquaculture

Early domestication in the aquaculture sector is unlikely to benefit from the same extent of free exchange of genetic resources that was enjoyed by the agriculture sector. The recent rise of access and benefit sharing (ABS) and patent restrictions concerning aquatic genetic resources are becoming increasingly complex and fragmented. This chapter navigates the main trade, environmental and social international instruments that affect ABS of genetic resources within three jurisdictional areas – waters within national jurisdictions, beyond national jurisdictions and in Antarctic waters. It concludes that the current fragmented geographical approach to ABS will ultimately hinder product development and research in aquaculture. Instead it offers some practical options for a common approach to implementing the relevant ABS and patent law instruments with the aim of accommodating aquaculture’s special characteristics, namely, its lag in domestication and research, its unique pattern of resource use and exchange and the trans-jurisdictional nature of its biological resources.

Sharing aquatic genetic resources across jurisdictions: playing ‘chicken’ in the sea

International regimes regulating access and benefit sharing were originally designed to promote conservation and fairness objectives concerning the use of the world’s biological resources for their genetic material value. These regimes determine from whom permission is required to take the resources and who obtains the benefits of their use. They have evolved separate frameworks in three distinct jurisdictional areas—within national jurisdiction, beyond national jurisdiction and in the Antarctic Treaty Area. This article argues that if these regimes continue to evolve separately, there is a strong temptation for countries to play ‘chicken’ with biological resource governance through forum shopping or opting out of agreements that do not suit their political ends. Using game theory and a transgenic tilapia fish example incorporating genetic material from the three jurisdictional areas, it illustrates the legal and ethical dilemmas that can arise from the territorial (jurisdictional) approach to access and benefit sharing—to the detriment of fairness and conservation in tilapia’s countries of origin. Tilapias are known as the ‘chicken of the sea’ because they dominate global farmed production and developing countries depend on them as their primary source of protein, livelihoods and trade. This means there will be serious consequences if the regimes do not achieve their fairness and conservation objectives for sharing their genetic material. This article concludes that a purpose-driven cooperative governance approach can sidestep the game of chicken and promote fairer and more conservation focused outcomes than the current jurisdictional approach for the developing country providers of migratory aquatic resources.

Patenting genetic material in aquaculture: a red herring or an emerging issue to tackle?

Patents can have both a positive and negative effect on innovation in aquaculture. On the one hand they may encourage investment in aquatic biotechnology. On the other hand, they may tie up genetic resources and research tools that may have otherwise been freely used by breeders or researchers to develop new breeds. This article considers the role and use of patent law for protecting new strains in aquaculture from unauthorised replication. While patents are not yet as extensive in aquaculture compared with other fields, there are issues that need to be addressed from the outset to protect aquaculture’s increasing role in global food security. Depending on the laws in a particular jurisdiction, patents could be claimed over genetic material products, including those derived from conventional breeding, as well as over processes for example methods of gene research. A central problem for breeders is determining the extent to which a patent holder can control other people’s use of subsequent generations whose breeding line originally incorporated the patented invention. In addressing this problem, the article suggests that exceptions against infringement including experimental use exceptions may be a useful avenue for breeders. It also highlights breeding defences and innocent bystander defences that are emerging in agriculture but which may also have future relevance to aquaculture. The article concludes that as patents start to take hold in aquaculture, breeders need clarity on the circumstances in which they can make a cross with an aquatic strain that includes patented genetic materials (such as a sequence or trait) that are not expressed in their new strain.